REPORT ON „EU LAW AND ARBITRATION”, COLLOQUIUM ORGANISED BY CLUB ESPANOL DEL ARBITRAJE (CEA) IN COLLABORATION WITH CEPANI, ICC AND DIS, WITH THE SUPPORT OF THE VBO/FEB AND THE BRUSSELS SCHOOL OF COMPETITION, by Juan M. SÁNCHEZ PUEYO, Lawyer at the Spanish Bar (NautaDutilh N.V., Amsterdam)
More than 150 guests gathered at the offices of the Federation of Enterprises in Belgium for the Belgian Chapter of the CEA’s inaugural conference.
After welcome speeches delivered by Emilio Paolo Villano, President of the Belgian Chapter of the Club Español del Arbitraje, José Maria Alonso, Honorary President of the Club Español del Arbitraje and Dirk De Meulemeester, President of CEPANI, the first keynote address was made by Stavros Brekoulakis.
In a passionate speech, Prof. Brekoulakis addressed some of the critiques and challenges that arbitration is currently facing, after what he described as „40 years of euphoria”. The focus of Prof. Brekoulakis’s speech was the relationship between the European Union and the arbitration community, especially in the areas of EU Competition Law and Investment Law. In relation to EU Competition Law, Prof. Brekoulakis pointed out that arbitration and EU Competition Law had developed in insolation, until arbitration’s popularity exploded during the last decades and it became seen as a useful tool to serve the European integration objectives. This new perception of arbitration made the European Union realize that arbitration ought to be regulated and integrated into the EU Competition Law system. Despite positive developments in this respect, Prof. Brekoulakis said that recent events are threatening what has been achieved in recent years. Regarding Investment Law, Prof. Brekoulakis commented upon the clash between the European Union and Investment Law, and also criticized the EU’s proposal for a new Investment Court System, arguing that, for example, a body comprised of judges would not be any more diverse that the current body of renowned international arbitrators usually appointed to deal with investment arbitration cases.
The first Panel, chaired by Francesca Mazza, focused on EU Competition Law and commercial arbitration. The first panellist, Andrea Carlevaris, addressed the powers and duties of arbitrators in applying EU and national competition law. Mr Carlevaris stated that arbitral tribunals are perfect substitutes for courts in many instances, including for disputes related to EU Competition Law. During his intervention, Mr Carlevaris highlighted the importance of keeping the balance between party autonomy and mandatory law, and he laid out some sensitive situations that arbitrators may face when arbitrating issues with EU Competition Law implications. The next panellist was Thomas Voisin, who addressed the potential consequences that the recent landmark judgement of European Court of Justice in the Hydrogen Peroxide v Azko Nobel case may have for the arbitration of issues related to EU Competition Law. After an interesting round of questions and some debate, it was Damien Geradin‘s turn. He commented on the issue of the public policy exception and the risk of non-enforceability of arbitral awards for violation of antitrust provisions. During his presentation, Prof. Geradin explained the two main approaches that are followed by courts when reviewing arbitral awards for violation of EU Competition Law, i.e., the minimalist and maximalist approaches. Prof. Geradin affirmed that a balance needs to be found between the effective enforcement of competition rules and the core principles of arbitration proceedings. The last intervention on this panel was delivered by Edurne Navarro Varona, who offered the audience practical insight regarding the role of the Commission and National Competition Authorities in international commercial arbitrations and the different ways in which both the European Commission and National Authorities can participate in arbitral proceedings.
The second panel, moderated by Juan Fernández-Armesto, focused on EU Law and Investment Arbitration. The panelists were Assimakis Komninos, Niuscha Bassiri, Tim Maxian Rusche andCarmen Martinez Lopez. Not only the topics, but also the composition of the panel, with Mr Maxian Rusche participating as member of the EU Commission’s legal services, generated great expectation among the audience. The panel lived up to the expectations, and the result was an intense and constructive debate in which the views of the arbitration community and the Commission on topics such as intra-EU Bilateral Investment Treaties (BITs) and the Commission’s proposals to create international investment courts were put to the test. Ms Martinez Lopez commenced the debate by addressing her concerns as to the Commission’s Investment Court System proposal for resolving investment disputes. The Commission’s antagonism towards Investment Arbitration and the perceived reduction of investors protection as a result of the proposed TTIP text were the initial focus of Ms Martinez Lopez’s intervention. Thereafter, Mr Maxian Rusche explained his views as to the TTIP proposal, and defended the diversity among European judges that could potentially be part of the Investment Court System’s. As the intensity of the debate grew , the moderator, Mr Fernández-Armesto, highlighted that the friction between the Commission and the arbitration community mostly focused on a few controversial investment arbitration cases, which represent a small fraction of the total numbers of investment arbitration proceedings. The debate on the Commission proposal ended after Ms Bassiri highlighted that the proposal is a missed opportunity to implement lessons already learned under the current system. For example, she expressed her concerns as to the selection process for judges and their impartiality.
The next topic discussed by the panelists was the future of the intra-EU BITs. Mr Maxian Rusche, after explaining the Commission’s stance, argued that the intra-EU BITs are in violation of EU Law. On the other hand, Mr Assimakis, after defending EU Law as part of our legal patrimony rather than just international law, stated that on the basis of current EU Law one cannot say that intra-EU BITs are void. Mr Assimakis and Mr Maxian Rusche also had opposing views as to the applicability of the Energy Charter Treaty between two European Union members. The final highlight of the debate was Mr Maxian Rusche’s explanation of the different circumstances in which the Commission intervenes in arbitral proceedings. Mr Maxian Rusche stated that the Commission has had both good and bad experiences with arbitration tribunals, and that, as an example of bad experiences, it is of note that some arbitral tribunals have ordered the Commission to pay their own costs as well as the parties’ costs in relation to the Commission’s intervention.
The conclusive remarks to this stimulating day were given by Mr Joachim Knoll, who gave an inspiring speech encouraging the audience to set aside the established antagonist positions that the arbitration community and the Commission have been taking toward each other, and to focus on improving collaboration.